Zach Stock: Santa memories and eyewitness problems

Zach Stock

Perhaps my earliest memory – I could not have been more than 5 – involves Santa Claus. The memory is dark, lit only by a single porch light. It was probably Christmas Eve.

I recall coming home with my parents. Suddenly, in my mind’s eye, I see a man in a red suit burst from the door, laughing, “Ho, Ho, Ho,” and ringing a bell. Then, I see my mom lean down, point, and say excitedly, “Look! It’s Santa!” Kris Kringle then runs out of sight, and the memory fades to black.

My parents confessed to this conspiracy long ago. An uncle played the starring role of Jolly St. Nick, but I’m less confident about the details. It might have been broad daylight, and it could have been December 2 or 17. It may have been my dad pointing out his Santa-impersonating brother. The presence of a bell is questionable, and I’m far from positive that I heard anything at all, let alone the classic Santa laugh.

My parents set up the ruse to reinforce my belief. It had the desired effect. I was committed to the myth long after my elementary school peers, and I even remember arguing with friends in school, citing my eyewitness account as exhibit A. This only reinforced my resolve and possibly kept a few third-grade classmates in the agnostic camp a little longer.

Scientific literature indicates skepticism grows, and belief in Santa begins dwindling around 7 or 8 years old. However, it may be that the more a child encounters a white-whiskered man in a red suit, the longer that child is likely to believe. My parents orchestrated a natural experiment that seems to confirm this finding.

There is, however, a dark side to this Rockwellian tale of childhood whimsy. It shows both the malleability of memory and the power of the testimonial recollection of events. The wrong mixture of these two features of the human mind has dramatic implications for our criminal justice system.

Under proper circumstances, eyewitness testimony is valid and valuable. When people accurately recount acts of violence to investigators, the appropriate perpetrators may be caught and deterred. However, when an eyewitness’s memory is corrupted (often unintentionally), the tainted memory is dangerous and can lead to wrongful conviction.

More than a third of all wrongful convictions in Indiana involve mistaken identification, and wrongful convictions have led to millions of dollars in legal settlements and payments from the Indiana Exoneration Fund. At the same time, having the wrong person locked up while potentially dangerous perpetrators roam free diminishes public safety. Most importantly, wrongfully convicted men and women across the country have lost nearly 30,000 years of freedom while locked away for crimes they did not commit.

Fortunately, there is a way to minimize memory corruption and reduce the risk of wrongful conviction. Four key reforms, often called the Core Four, have been vetted in more than 30 states and supported by more than 30 years of peer-reviewed research.

  • First, when an eyewitness is brought in for a live lineup or to examine a photo array of suspects, there should be a blind administration of the lineup to minimize taint through suggestion.
  • Second, the witness should be told that the perpetrator may or may not be present in the lineup and that she is not required to make an identification.
  • Third, the fillers in the lineup should be selected based on their resemblance to the description of the suspect provided by the witness.
  • Fourth, immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates his confidence in the identification made.

Indiana can join the majority of red and blue states that have codified or otherwise adopted these procedures into law. Logic and scientific testing have nothing to do with Santa Claus. They’re everything in a criminal investigation. The Core Four can bring objectivity and reliability to a process fraught with subjectivity, and it would be a nice present for every Hoosier.

Zach Stock is an appellate public defender and serves as legislative counsel for the Indiana Public Defender Council. This commentary previously appeared at Send comments to [email protected].